ACQUISITION OF EASEMENT BY PRESCRIPTION

Easement can be explained best with an example, say, ‘A’ (owner of a house) has the right to go
to B’s land to fetch water, is an easement.

Acquisition of easement by prescription is one amongst the several methods by which easement
may be acquired. For example, the access and use of light or air of any building for twenty five
years is an easement without interruption. Prescription occurs when the owner of the land has long
use of a ‘right’ over the land belonging to another. The rationale behind this is that the long use of
the ‘right’ gives rise to a presumption that a grant of the right was made.

An easement by prescription is obtained under the principles of “adverse possession”, under which
someone other than the original property owner gains use or ownership rights to certain property.1
This concept finds mention, both in the Indian Easement Act (Sections 15 – 17), 1882 and the
Limitation Act, 1963 (Sections 25 and 26 r/w Section 29(4)). It is important to read the relevant
sections in these two statutes together as it has a common aim. The relevant provisions in the
Limitation Act are alternate provisions of the Easement Act. Section 15 of the Easement Act
provides for the acquisition of the right of easement by prescription.

In the case of Krishnan v. Nanukuttan2, the honorable High Court of Kerala listed out seven
conditions that are to be satisfied to establish right to easement by way of prescription. They are:

a) “There must be a pre-existing easement which must have been enjoyed by the dominant
owner; - Nec Precario
b) The enjoyment must have been peaceable; - Nec Vie
c) The enjoyment must have been as an easement; - Nec Clam
d) The enjoyment must have been as of right;
e) The right must have been enjoyed openly;
f) The enjoyment must have been for a period of twenty years;
g) The enjoyment for 20 years must have been without interruption;”

1
John P. Lewis, Land Use Controls and Property Rights: A Guide for Real Estate Professionals, (1 st ed., 2007).
2
ILR 1986 (1) Kerala 526.
All the above seven ingredients must be proved to have been present during the whole of the
prescriptive period of 20 years.

The Apex Court has laid down that to establish the clause under Section 15 of the Easement Act,
“continuous user of 20 years as of right to do the act complained of in assertion of a title, peaceably
and openly must be made out.”3 If the enjoyment (any duration) ceases and no suit is initiated
within two years of the cessation, the enjoyment has lost all efficacy for the purpose of acquiring
an easement.4

The period of twenty years must have ended within a period of two years immediately preceding
the date of suit claiming such easement. This can be considered as the last ingredient, though not
enumerated, is an integral part of the section, to be satisfied too.

3
Krishna Narain Agarwal v. Carlton Hotel 1969 SCD 1105.
4
M. Jadavji v. S.S. Randidas 7 Saurashtra LR 183.